Remedies tegen onwettige detentie in Rwanda
ISBN: 978-90-361-0534-7
Remedies tegen onwettige detentie in Rwanda
Thesis
to obtain the degree of Doctor from the Erasmus University Rotterdam
by command of the rector Magnificus Prof.dr. R.C.M.E. Engels
and in accordance with the decision of the Doctorate Board. The public defence shall be held on
Thursday, December 6, 2018 at 09.30 hours by
Niyibizi Tite born in Nyabihu, Rwanda
Promotor:
Prof.mr. N.J.H. Huls
Other Members:
Prof.mr. P.A.M. Mevis Prof.mr. H. de Doelder Prof.mr. J.H. Crijns
Copromotor:
Dr. A. Beijer
This work is dedicated to my entire family especially to my darling wife Franco, my lovely sons Jackson and David. This book is also dedicated to all victims of unlawful detention.
Acknowledgements
The completion of this study results not only from the personal effort of the author but also from the support of numerous people and institutions.
Foremost, I wish to thank my promotor, Prof. Nick Huls for the dedication, wis-dom and encouragement he unceasingly extended to me. Words cannot adequa-tely express the gratitude I owe him. My heartfelt and endless gratitude goes to the co- promotor of this study, Dr. Annemarieke Beijer. I benefited and learned a lot from her rich academic experience. Their encouragement, follow-up, openness, and collaboration eased my task. My heartfelt gratitude also goes to members of the Evaluation Committee for accepting to examine and evaluate this study.
Great thanks to the Erasmus Rotterdam University, Erasmus School of Law, spe-cifically to the Sociology, Theory and Methodology Department and its staff that hosted, facilitated and introduced me to the academic world. I cannot also forget to appreciate contributions, constructive discussions and comments I received from Profs. Ellen Hey, Sanne Taekema, and Peter Mascini during my probationary year. They helped me understand how to conduct academic research with an open mind. I would also like to thank Dr. Jet Tigchelaar, who was present at the inception of my idea to start a Ph.D. research, and who introduced me to my co-promotor, Dr. An-nemarieke Beijer. I cannot also forget to appreciate the contributions, constructive discussions and comments I enjoyed from Justice Prof. Ngagi Alphonse during my research period. There are never enough words to describe how appreciative I am for everything you have done for me.
I also want to express my sincere gratitude to the Institute of Legal Practice and Development (ILPD) for its support, to the Dutch Government through NUFFIC for financing my Ph.D. project, and to MDF for managing my scholarship. Kees van der Zanden deserves special thanks for his dedication and facilitation beyond the expected. I also extend my sincere appreciation to the Government of Rwanda
List of abbreviations and acronyms
AfCHPR African Court of Human and Peoples’ Rights AJR Association of Rwandan Journalists
APCOF African Policing Civilian Oversight Forum
ARDHO Association Rwandaise de Défense des Droits de l’Homme
ARFEM Association of Rwandan Female Journalists AU African Union
CCB III Civil Code Book Three
CNRD Commission Nationale de Réparation de la Détention Provisoire
CCP Code of Criminal Procedure
CEDH Commission Européenne des Droits de l’Homme
CPP Code de Procédure Pénale
CSDP Commission de Suivi de la Détention Provisoire
DOCD Detaining Officer Complaints Directorate EAC East African Community
EACJ East African Court of Justice
ECHR European Convention on Human Rights ECOWAS Economic Community of West African States ECtHR European Court of Human Rights
HRA Human Rights Act
ICCPR International Covenant on Civil and Political Rights ICTR International Criminal Tribunal for Rwanda
IECMS Rwanda Integrated Electronic Case Management System ILPD Institute of Legal Practice and Development
IPCC Independent Police Complaints Commission JRLOS Justice, Reconciliation, Law & Order Sector LAF Legal Aid Forum
MAJ Maisons d’Accès à la Justice
MINIJUST Ministry of Justice for accepting, granting and facilitating my leave of absence from duty every year
throughout my research and study period.
I am especially thankful to Prof. Ed. Cape for guiding me on remedies for unlawful detention in the UK. To my very good friends Florian Gambini, your support and gui-dance on remedies for unlawful detention in France have played a big role in chapter four. Thank you. To Emmanuel Oteng, I am grateful for your feedback and guidance on remedies for unlawful detention in Uganda. My heartfelt appreciation goes out to Justice Dr. Faustin Nteziryayo for your comments on the protection of unlawfully detained persons in Rwanda through sub regional, regional, and international me-chanisms. To Patrice Scully, I can never thank you enough for proofreading of drafted chapters. I am forever grateful. A special thanks goes to the following friends with whom I shared ideas, laughter and fears in the first phase of my Ph.D. journey at Erasmus Graduate School of Law (EGSL): Alberto, Aster, Elize, Gerald, Margaux, Marta, Sohail, Tatian, and Yayun. My warmest and sincere thanks go to Prof. Nick Johnson and his wife, who not only helped in an earlier stage of my Ph.D. journey but helped in editing this manuscript. I cannot forget to thank Marco Rave and his wife Aline, who made me feel at home during my intermittent time in Rotterdam. Last but not least, I am grateful to my family. Special thanks must be given to my lovely wife Nyiranshuti Franco for her brave spirit, encouragement, love and care that cannot be evaluated in words. Likewise, my thanks go to my sons Jackson and David who have patiently accepted my time away from them. Special thanks to my beloved parents, Mbaraga Juvenal and Ntabahwana, for their constant support and dedication that encouraged me to chase my dream and fully experience life. I am also profoundly thankful for my parents-in-law, Munyangeyo François and Nyirabu-curira Judith, and their children, for their endless care and assistance to my wife and sons while I was away from home.
Finally, I am grateful to everyone who anonymously assisted me or contributed in one way or another in this project. Above all, I give all the glory and thanks to God for all His blessings during this research that enabled me to complete this work.
Table of contents
Dedication 5
Acknowledgements 7 List of abbreviations and acronyms 9 Table of contents 11
Chapter 1: General introduction
21
1.1. Why this study? 21
1.2. Problem statement 23 1.3. Research questions 24 1.4. Research methodology 25 1.4.1. Doctrinal method 25 1.4.2. Comparative method 26 1.4.3. Empirical method 27 1.5. Conceptual framework 27 1.5.1. Unlawful detention 27 1.5.2. Remedies against unlawful detention 28 1.5.3. The victim of unlawful detention 30
1.6. Structure of this research 30
Chapter 2: Appraisal of the existing remedies
against unlawful detention in Rwanda
33
2.1. The protection of the individual against unlawful detention in Rwanda 33 2.1.1. Historical background 33 2.1.2. Rights of suspects 37
2.1.2.1. The right to be informed of the charges 37 2.1.2.2. The right to be detained in a place recognized by law 38 2.1.2.3. The right to inform family or friends 39 2.1.2.4. The right to a legal counsel 39 MININTER Ministry of Internal Security
NCHR National Commission for Human Rights NGOs Non-Governmental Organizations
No Number
NPPA National Public Prosecution Authority
NURC National Unity and Reconciliation Commission OAU Organization of African Unity
OFJC Organization, Functioning, and Jurisdiction of Courts O.G.R.R Official Gazette of the Republic of Rwanda
O.G Official Gazette
PACE Police and Criminal Evidence Act PRI Penal Reform International RCS Rwanda Correctional Service REFO Rwandan Editor’s Forum RIB Rwanda Investigation Bureau RNP Rwanda National Police UGHC Uganda High Court
UHRC Ugandan Human Rights Commission UK United Kingdom
UN United Nations
UNESCO United Nations Educational, Scientific and Cultural Organization UNHRC United Nations Human Right Committee
2.1.2.5. The right to be presumed innocent 39
2.1.3. Phases of detention in the Rwandan legal framework 42
2.1.3.1. Detention while in police custody 42 2.1.3.2. Pre-trial detention 45 2.1.3.3. Detention after the start of the trial on the merits 46 2.1.3.4. Detention after conviction 48
2.1.4. Obstacles in the enforcement of habeas corpus in Rwanda 48
2.1.4.1. The competent court to hear the petition for habeas corpus 49 2.1.4.2. The requirement to name the person carrying out the
unlawful detention 51 2.1.4.3. The burden of proof 52 2.1.4.4. The Court decision 52
2.2. The situation of unlawful detention in Rwanda 53 2.2.1. The National Human Rights Commission reports 53
2.2.1.1. Receive, examine and investigate complaints relating to
unlawful detention 54 2.2.1.2. Assisting victims of unlawful detention 57 2.2.1.3. Reports on unlawful detention in Rwanda 57
2.2.2. The Legal Aid Forum (LAF) study 58
2.2.2.1. Violation of the maximum period of detention in police custody 58 2.2.2.2. Violation of the maximum period of pre-trial detention 59 2.2.2.3. Limited legal assistance for detained persons 59 2.2.2.4. LAF’s recommendations 61
2.2.3. Institute of Legal Practice and Development (ILPD) study 62
2.2.3.1. Results of the study 62 2.2.3.2. Explanation of the problem 62 2.2.3.3. ILPD’s recommendations 63 2.2.3.4. Follow up by the Ministry of Justice 64
2.2.4. The U.S. Department of State reports 65
2.2.4.1. Violation of the maximum period of detention 65 2.2.4.2. Detained persons in unofficial detention place 66
2.2.4.3. No effective remedies for unlawful detention 66
2.3. Compensation for unlawful detention under Rwandan law 67 2.3.1. Compensation for unlawful detention under tort law 67
2.3.1.1. Procedural issues 68 2.3.1.2. Conditions for civil liability 72
2.3.2. Compensation for unlawful detention through criminal procedure law 74
2.3.2.1. Prosecution of unlawful detention offences 74 2.3.2.2. Filing a civil action by way of private prosecution 76
2.3.3. Compensation under administrative law 77
2.3.3.1. Compensation for loss resulting from an administrative decision 78 2.3.3.2. Compensation for Wrongful conviction 79 2.3.3.3. Expropriation 80 2.3.3.4. Damages caused by animals from the national park 80 2.3.3.5. Lessons learned 81
2.4. Conclusion 82
Chapter 3: Protection of unlawfully detained persons in Rwanda
through sub regional, regional, and international mechanisms
85
3.1. The role of the East African Community mechanisms 86 3.1.1. The EAC Treaty’s remedies for unlawful detention 86
3.1.1.1. Release from unlawful detention 87 3.1.1.2. Compensation 87
3.1.2. The role of the East African Court of Justice 88
3.1.2.1. The EACJ has jurisdiction over unlawful detentions
that occur in Rwanda 88 3.1.2.2. The EACJ has no jurisdiction to require release or
compensation for unlawful detention 90
3.2. The role of the African Union in the protection of unlawfully
detained persons in Rwanda 91 3.2.1. Remedies 93 3.2.2. The role of the African Commission on Human and Peoples’ Rights 94
3.2.2.1. The jurisdiction of the African Commission on Human
and Peoples’ Rights 94 3.2.2.2. The access of unlawfully detained persons in Rwanda
to the African Commission on Human and Peoples’ Rights 96
3.2.3. The role of the African Court on Human and Peoples’ Rights
(AfCHPR) 98
3.2.3.1. Remedies for unlawful detention 98 3.2.3.2. The access of unlawfully detained persons in Rwanda
to the AfCHPR 99
3.3. The role of the UN mechanisms 101 3.3.1. The ICCPR’s remedies for unlawful detentions 102 3.3.2. Enforcement of these remedies in Rwanda 103 3.3.3. Role of the Human Rights Committee in enforcement of these
remedies in Rwanda 104
3.3.3.1. States’ Reports to the Human Rights Committee 104 3.3.3.2. Interstates complaint procedure 106 3.3.3.3. Procedure for complaints by individuals to the
Human Rights Committee 106
3.3.4. Role of the United Nations Working Group on Arbitrary Detention 107
3.3.4.1. Jurisdiction of the Working Group on Arbitrary Detention 108 3.3.4.2. Role of the Working Group in releasing and compensating
unlawfully detained persons in Rwanda 108
3.4. Conclusion 112
Chapter 4: A comparison of the Rwandan remedies against unlawful
detention with those of Uganda, France, England and Wales
115
4.1. Remedies against unlawful detention in Uganda 116 4.1.1. Protection of the individual against unlawful detention in Uganda 117
4.1.1.1. Police detention 117 4.1.1.2. The maximum period for pre-trial detention 118 4.1.1.3. Right to a trial without undue delay 118
4.1.2. Habeas corpus in Uganda 1 19
4.1.2.1. The competent court to adjudicate habeas corpus applications 120 4.1.2.2. Who may petition for habeas corpus and who must be served? 120 4.1.2.3. Who bears the burden of proof in habeas corpus proceedings? 120 4.1.2.4. The enforcement of the right to habeas corpus 121
4.1.3. Compensation for unlawful detention in Uganda 121
4.1.3.1. Who is entitled to a claim and how can the fault be defined? 122 4.1.3.2. Who can be sued and which organs are competent to decide about compensation for unlawful detention claims ? 123 4.1.3.3. Compensable damages 124
4.1.4. The role of the Ugandan Human Rights Commission in the
enforcement of remedies for unlawful detention 126
4.1.4.1. The UHRC mandate 127 4.1.4.2. The enforcement of remedies for unlawful detention
by the UHRC 128
4.1.5. Conclusions about Uganda 129 4.2. Remedies against unlawful detention in France 130 4.2.1. Protection of the individual against unlawful detention in France 131
4.2.1.1. Police detention 132 4.2.1.2. Pre-trial detention 133 4.2.1.3. Punishment for the offence of unlawful detention 135
4.2.2. Compensation for unlawful detention 135
4.2.2.1. The legal framework 136 4.2.2.2. Who may be sued and what is the competent jurisdiction? 138 4.2.2.3. Who is entitled to claim compensation? 139 4.2.2.4. Fault 140 4.2.2.5. Damages 142
4.2.3. Compensation based on unjustified detention 143
4.2.3.1. The legal framework for unjustified detention 144 4.2.3.2. Who is entitled to compensation for detention? 146 4.2.3.3. Who may be sued and what is the competent court? 147
4.2.3.4. Compensable damages 148
4.2.4. Conclusions about France 149 4.3. Remedies against unlawful detention in England and Wales 150 4.3.1. Protection of individuals against unlawful detention in English law 151
4.3.1.1. Police detention 151 4.3.1.2. Pre-trial detention 153 4.3.1.3. Right to a trial without undue delay 154
4.3.2. Habeas corpus 154 4.3.3. Compensation for unlawful detention 156
4.3.3.1. Who may be sued and what is the competent jurisdiction? 157 4.3.3.2. Fault 158 4.3.3.3. Damages 159
4.3.4. Conclusions about England and Wales 162 4.4. The role of European human rights mechanisms in the protection of unlawfully detained persons in France and England and Wales 163 4.4.1. Habeas corpus 165 4.4.2. The right to be tried within a reasonable time 166
4.4.2.1. When does the length of criminal proceedings become
unreasonable? 166 4.4.2.2. Remedies for violation of the right to be tried within a
reasonable time 167
4.4.3. Compensation for unlawful detention 168
4.4.3.1. Material damages 169 4.4.3.2. Moral damages 170 4.4.3.3. Punitive Damages 171
4.5. Comparison between Rwanda and Uganda, France and England
and Wales 172 4.5.1. Comparison of the allowed period of detention in police custody 172 4.5.2. Comparison of habeas corpus 172 4.5.3. Comparison of compensation for unlawful detention 174
4.5.3.1. Comparison of the legal framework 174
4.5.3.2. Comparison of the proper defendant and the proper court
for adjudicating claims for compensation 175 4.5.3.3. Comparison of compensable damages 176
4.5.4. Remedies for unlawful detention through regional
human rights mechanism 177
4.6. Conclusion 178
Chapter 5: Towards effective remedies against unlawful
detention in Rwanda
181
5.1. Review of the existing institutional framework 181 5.1.1. Improving supervision and accountability of persons involved
in detention decisions 181 5.1.2. Extending legal assistance to all indigent detained persons 184
5.1.2.1. Establishing legal assistance 184 5.1.2.2. Extending Maisons d’Accès à la Justice services to
indigent detained persons 185 5.1.2.3. Enhancing the coordination of State and non-State
legal aid providers 187
5.1.3. The need to raise awareness of accused persons’ rights in Rwanda 187
5.1.3.1. How to raise awareness of accused persons’ rights in Rwanda? 188 5.1.3.2. The role of Civil Society Organizations and NGOs in
protecting the rights of detained persons 189 5.1.3.3. The role of the media 189
5.2. Review of Rwanda’s existing legal framework 189 5.2.1. The need to reduce the maximum periods of detention 190
5.2.1.1. Detention in the police custody 190 5.2.1.2. Detention after the start of the hearing on the merits and
the right to be tried without undue delay 190
5.2.2. Review of the habeas corpus procedure 192
5.2.2.1. The head of prison or other place holding the detained
5.2.2.2. The burden to prove the lawfulness of the detention
should be on the respondent 193 5.2.2.3. The competent court for the habeas corpus application 194 5.2.2.4. Rwandan law should be amended to require the court to
order release if it determines that the detention is unlawful 195
5.2.3. Compensation for unlawful detention 198
5.2.3.1. Rwanda should establish the right to compensation for
unlawful detention 198 5.2.3.2. State liability for unlawful detention 199 5.2.3.3. Rwandan law should identify the classes of persons eligible
for compensation for unlawful detention 201 5.2.3.4. Rwandan law should identify the types of damages
that are compensable for unlawful detentions 202 5.2.3.5. Unlawfully detained persons should be able to seek
non-monetary compensation 204 5.2.3.6. Designation of the competent court 206 5.2.3.7. The prescription period for compensation claims 207
5.3. Review of Rwanda’s policy regarding granting individuals access
to regional and international human rights courts 207
5.3.1. EAC member states should approve the protocol to the EAC to extend EACJ jurisdiction for Rwandans claiming human rights
violations 208 5.3.2. Rwanda should review its declaration that revoke individuals
access to the African Court 208 5.3.3. Rwanda should ratify the Optional Protocol to the ICCPR 209
5.4. Recommendations 210 5.4.1. To the Rwandan government and Parliament 210 5.4.2. Rwandan criminal justice institutions 212 5.4.3. The National Commission for Human Rights, Civil Society
Organisations and Rwandan Bar Association 212
Summary 215 Samenvatting 220 Table of laws and regulations 226 List of Treaties, resolutions and related documents 231 Table of court judgements 233 Bibliography 237
Books, Articles and Ph.D. Theses 237 Reports and Policies 246
Table of interviews 251 ANNEX I: QUESTIONNAIRE FOR ADVOCATES 253 ANNEX II. INTERVIEW QUESTIONS 259 About the Author 261
Chapter 1: General introduction
1.1. Why this study?
The right to liberty and security is a fundamental right inherent in the individual, enshrined in international and regional instruments for the protection of human rights. These instruments provide for the protection of the individual against arbi-trary arrest and unlawful detention. The right to liberty is also recognized in Article 24 of the Constitution of the Republic of Rwanda of 2003, revised in 2015, which requires that any deprivation of liberty should be conducted under conditions speci-fied by law. Articles 90-91 of the Rwandan Code of Criminal Procedure (CCP) define unlawful detention and set out the procedure for habeas corpus.1
Despite the existence of these provisions providing protection against arbitrary ar-rest and unlawful detention, the National Commission for Human Rights (NCHR) in Rwanda highlighted in its annual reports between 1999 through 2016 numerous cases of unlawful detention. For example, the 2009-2010 report noted cases of two people who were released, each after spending more than ten years in unlawful detention.2 Moreover, in 2013, Rwanda’s Legal Aid Forum (LAF)3 reported that over
seven hundred people were held in unlawful detention.4 In the same year, the study
on the End-to-End Process Mapping of the Criminal Justice System in Rwanda showed that communication issues between police, prosecution, courts, and pris-ons lead to unlawful detentipris-ons, unnecessary adjournment of cases, and delay in
1 Arts 90 and 91 of the CCP.
2 Nyirababirigi was released after 13 years in unlawful detention as she was detained without a criminal case and
without a valid detention order. Nyiraminani was released after 14 years in unlawful detention. NCHR, Annual
Report 2009-2010, pp. 48-51.
3 LAF is a Rwandan non-government organization which was established in 2006, it creates a space where organizations that wished to provide legal aid to indigent and vulnerable groups could share information and best practices and collaborate in research, and evidence-based advocacy.
4 LAF, Improving the Performance of the Criminal Justice System through Improved Pre-trial Justice, The Impact of
releasing inmates who have been acquitted by courts.5
Since 2003, there has been a debate regarding compensation for unlawful detention in Rwanda. For example, in 2003, the National Unity and Reconciliation Commis-sion (NURC)6 recommended the creation of a compensation fund for individuals
who were wrongfully imprisoned in the immediate aftermath of the 1994 Genocide against the Tutsi in Rwanda and for heirs of innocent persons who died in prison.7 In
2010, when the Rwandan Minister of Justice was asked about compensation for un-lawful detention, he replied that “Regarding compensation of individuals detained and later exonerated has not yet been incorporated as a tenet of our justice system; nor will you find it to be a principle followed in our neighbouring countries.”8 In
2011, while presenting its report to Parliament, the NCHR recommended compen-sation for unlawful detention.9 From 2003 until 2017, to the best of my knowledge,
no steps have been taken to this end. There is neither a specific or general legal provision for compensation for unlawful detention nor a solution of the problem in Rwandan case law.
Hence, this study aims to (1) analyse the existing mechanisms at national, regional and international levels for the protection of unlawfully detained persons in Rwan-da, (2) identify the legal and practical hindrances to the realisation of remedies for unlawful detention and (3) suggest mechanisms which might be introduced in Rwanda to compensate unlawfully detained persons. Additionally, this study in-tends to contribute to the current debate of legal scholars and legal practitioners on appropriate remedies for unlawful detention and the enforcement of international human rights instruments in national legal systems.
5 Institute of Legal Practice and Development (ILPD), Study on the End to End Process Mapping of the Criminal
Justice System in Rwanda, May 2013. Dr. Muyoboke K. Aimé, Me Niyibizi Tite, and CIP Bisangwa Modeste
conducted that study under the supervision of Prof Nick Huls., available at http://ilpd.ac.rw/fileadmin/ user_upload/ILPD_Document/Publications/STUDY_ONEND_TO_END_MAPPING_TO_CRIMINAL_JUSTICE. pdf, [accessed 20/10/2017].
6 The National Unity and Reconciliation Commission was created in March 1999 by Law no. 03/99 of 1999 to
promote unity and reconciliation among Rwandans after the 1994 genocide against the Tutsi.
7 PRI, Eight Years On…A Record of Gacaca Monitoring in Rwanda, Penal Reform International, p. 46, (2010). 8 Response to Human Rights Watch from the Rwandan Minister of Justice, 5 May 2011. Former Minister of Justice
Karugarama Tharcise, in Human Rights Watch, Justice Compromised, the Legacy of Rwanda’s Community-Based
Gacaca Courts, Human Rights Watch, (May 2011).
9 NCHR, Annual Report January 2009-June 2010, p.49-55, (October 2010).
1.2. Problem statement
In order to protect individuals against unlawful detention, the state has an obliga-tion to regulate the detenobliga-tion of persons within its borders. The CCP sets out condi-tions which can lead to unlawful detention.10 These conditions include (1) detaining
a person in a place other than a relevant custody facility, (2) holding a person in detention for a period that exceeds the period specified in the arrest statement and provisional detention warrants, (3) retaining a person under custody while there is an order invalidating or rejecting extension of provisional detention or granting provisional release, (4) retaining a person in custody despite an acquittal granted by a court decision.11 Article 91 of the CCP provides for writs of habeas corpus. The
detained person is entitled to challenge the lawfulness of his or her detention before a court that is nearest to the place where the person was arrested.12 Article 91(2) of
the CCP provides that a judge, after hearing the evidence, may order the person’s release or continuation of detention.
The continuation of detention despite its unlawfulness raises the question about the legal consequences. Unlawful detention may affect its victims emotionally, so-cially, physically and economically. Moreover, unlawful detention may also affect the detained person’s family, especially when the detainee is the family breadwinner.13
As there is no legislation providing for compensation for unlawful detention in Rwanda, it can be argued that unlawfully detained persons may seek compensation through tort law, administrative and criminal procedure law.14
Furthermore, Article 168 of the Rwandan Constitution states that international and regional instruments ratified by Rwanda have the force of law and supersede ordi-nary laws. Rwanda has ratified international and regional instruments that provide for the right to be released from, and compensation for, unlawful detention. These
10 Art.90 (2) of the CCP. 11 Art.90 (2) of the CCP. 12 Art.91 (1) of the CCP
13 JRLOS, The Republic of Rwanda Justice, Reconciliation, Law & Order Sector Strategic Plan July 2013 to June 2018, p.8.
14 The submitted Rwandan report in 2014 to the United Nations Human Rights Committee (UNHRC) on the enforcement of the right to compensation for unlawful detention in Rwanda indicated that an unlawfully detained person enjoys the right to lodge an appeal before a court to obtain compensation through a habeas corpus procedure. See the Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40
instruments impose an obligation on the State to take specific legal and other meas-ures to give effect to the right against unlawful detention and also require remedies to be provided in case of violation of rights.15 For example, in 1975, Rwanda ratified
the International Covenant on Civil and Political Rights (ICCPR).16 Article 9(4) and
(5) of that Covenant provides for victims of unlawful arrest or detention the right to challenge the lawfulness of detention, the right to be released from unlawful deten-tion and the right to compensadeten-tion. Where there is insufficient protecdeten-tion against human rights violations in a domestic legal system, victims of rights violations must look to international, regional or sub-regional instruments for protection and com-pensation. The ICCPR and other instruments are relevant sources of Rwandan law that may be invoked by victims of unlawful detention and applied by the courts in deciding cases brought by such victims.
Additionally, those instruments provide international, regional or sub-regional courts and institutions that may serve the needs of victims of human rights viola-tions who failed to obtain remedies through national courts.17 However, as of April
of 2018, no unlawfully detained persons in Rwanda have obtained compensation based on those international and regional instruments from a Rwandan court,18 a
regional court,19 and international institutions.20
1.3. Research questions
This study explores the necessary legal and institutional framework21 to provide due
process protections to victims of unlawful detention in Rwanda, as well as providing
15 Joseph, S., Schultz, J., & Castan, M., The International Covenant on Civil and Political Rights, Cases, Material and
Commentary, p.viii, (2004).
16 Rwanda ratified the covenant on 16/04/1975, entry into force on 16/07/1975. It has been incorporated into domestic law pursuant to Decree-Law no. 8/75 of 12 February 1975, Official Gazette, no. 5, 1 March 1975.
17 REDRESS, Reaching for Justice The Right to Reparation in the African Human Rights System,p.3, (October 2013).
18 The US Department of State, Country Reports on Human Rights Practices for 2016, Rwanda, p.12.
19 Finalized cases before the African Court on Human and People’s Rights, available at http://www.african-court. org/en/index.php/cases/2016-10-17-16-18-21#finalised-cases, [accessed 27/03/2017].
20 The UN Human Rights Committee, Jurisprudence, available at http://juris.ohchr.org/search/results, [accessed 27/03/2017].
21 The legal framework comprises in this study, first, the formal rules, including the Constitution, international and regional conventions, legislation, and regulations. Second, it contains case laws, general comments, guidelines ,and literature.
compensation for those unlawfully detained. This leads to three research questions. First, what are the reasons in the existing Rwandan legal and institutional framework
that prevent victims’ release from, and compensation for, unlawful detention? In
answer-ing this question, I have scrutinised the available procedures for unlawfully detained persons to seek release and compensation.
Second, what are the obstacles to unlawfully detained persons in Rwanda obtaining release
and compensation through the current courts and institutions of the East Africa Commu-nity, African Union, and United Nations? The answer to this question assesses the
practical and legal obstacles that unlawfully detained persons face when relying on regional and international courts and institutions. This study also suggests steps that the Rwandan government should take to provide compensation to victims of unlawful detention in accordance with the instruments of the East Africa Commu-nity, the African Union and the United Nations.
Third, what can Rwanda learn from other countries’ legal and institutional frameworks? To ascertain alternative procedures that might be introduced in Rwanda, I have employed a comparative study to find best practices. The answer to this question explores whether there is a need to establish strict state liability and a special proce-dure for compensation for unlawful detentions.
1.4. Research methodology
1.4.1. Doctrinal method
A doctrinal approach is a method of analysing and interpreting the law, focusing on legal texts and court decisions.22 Remedies for unlawful detention in Rwanda
need to fit in the Rwandan legal system. In this study, doctrinal research is used to understand the existing domestic legal rules and ratified international instruments, in order to identify legal, institutional, and practical barriers to protect unlawfully
detained persons in Rwanda. The key instruments studied in this work include the ICCPR, the African Charter on Human and Peoples’ Rights (African Charter),23 the
European Convention on Human Rights (ECHR)24 and the Treaty for the
Establish-ment of the East African Community.25 Moreover, relevant case law and academic
literature have been used to show how the remedies provided in the regional and international instruments have been interpreted and applied by regional courts and international institutions.
1.4.2. Comparative method
Article 9(4) and (5) of the ICCPR provides for release of unlawfully detained persons, as well as an enforceable right to compensation. The rights embodied in that Cove-nant are universal minimum standards which should have the same meaning for all member states.26 At least 168 states, including Rwanda, are parties to the ICCPR.27
However, in their domestic laws, the party states have adopted different approaches to the issues of release and compensation of unlawfully detained persons. In this study, I have compared the legal procedures of Rwanda, Uganda, France, England and Wales (all parties to the ICCPR28) with respect to the release and compensation
for unlawfully detained persons to ascertain best practices for protecting victims of unlawful detention. Additionally, Rwanda and Uganda are parties to the African Charter29 and the East African Community Treaty.30 Both countries have similar
23 Ratified by the Republic of Rwanda on November 11, 1981, in Addis Ababa, as approved by Law n° 10/1983 of May 17, 1983.
24 Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended
by Protocols Nos. 11 and 14, 4 November 1950, ETS 5. This convention was selected because it has been ratified by
the United Kingdom and France, which I compared with Rwanda.
25 The Republic of Rwanda acceded to the EAC Treaty on 18 June 2007, http://www.eac.int/about/EAC-history, [accessed 28 March 2017].
26 Joseph, S., Schultz, J., & Castan, M., p.viii. (2004).
27 See United Nations, International Covenant on Civil and Political Rights, ratification status, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en, [accessed 20/01/2016].
28 Which provides in its Article 9(4) and (5) the right to be released from and compensation for unlawful detention 29 In their interpretation of Articles 5, 6, 7 and 26 of the African Charter, the African Commission on Human and Peoples’ Rights indicates that “States shall ensure, including by the enactment of legal provisions and adoption of procedures that anyone who has been victim of unlawful arrest or detention is enabled to claim compensation.”
See African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial
and Legal Assistance in Africa (“African Principles”) 2003, DOC/OS (XXX) 247, Principle M (1) (h).
30 Article 6 of the African Charter provides that the member states are bound by principles of good governance, including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples’ rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.
social economic positions and have many prisoners. I have chosen France, England and Wales for this study because they have advanced legal systems.
1.4.3. Empirical method
To supplement my doctrinal research, I have conducted semi-structured interviews31
with Rwandan legal practitioners and experts, specifically the Deputy Chief Justice, the former President of the NCHR and the Chairperson of the African Commission on Human and Peoples’ Rights, the Deputy Chairperson of the NCHR, four senior judges, one inspector of courts, one prosecution inspector, two states attorneys in the Ministry of Justice, and two senior staff of non-government organisations. Next, I conducted a survey of Rwandan defence lawyers to determine their experi-ence seeking and obtaining remedies for unlawful detention in Rwanda. I distribut-ed questionnaires32 to one hundred and ten defence lawyers in the diploma in legal
practice course at Rwanda’s Institute of Legal Practice and Development (ILPD)33
and received twenty seven responses. Additionally, to understand how the Rwandan courts have interpreted and applied the existing remedies for unlawful detention, I analysed twenty court decisions identified by lawyers whom I interviewed.
1.5. Conceptual framework
This study uses the following three key concepts: unlawful detention, remedies for unlawful detention and the victim of unlawful detention. Each is discussed sepa-rately below.
1.5.1. Unlawful detention
Unlawful detention is defined differently in international, regional and domestic
31 Semi-structured interviews use questions and a guide to conduct interviews to obtain the interviewee’s perceptions and experience. See Laforest, J., Guide to Organizing Semi-Structured Interviews with Key Informants, p.1, (2009). See also Annex II.
32 See Annex I.
33 ILPD is a post-graduate legal institute with administrative and financial autonomy. See Art. 1 of Law no 65/2013
of 27/08/2013 establishing the Institute of Legal Practice and Development (ILPD) and determining its mission, organization and functioning, Official Gazette no 41 of 14/10/2013.
procedural legislation. There is no universal or common definition of “unlawful detention” in comparative law.34 In this study, I have considered that a detention
is unlawful if it contravenes any provisions of Rwandan or international law. This study is limited to detentions in contravention of the law at every stage of the crim-inal process, including arrest, pre-trial detention, detention during the trial and detention after the court decision.
Rwanda’s legal system distinguishes between an administrative detention, detention because of mental illness, military detention, and detention for criminal charges. This study is limited to detention for criminal charges, including detention by the judicial police,35 the military police, prosecutors, the military prosecutor and prison
authorities. This study does not cover unlawful detention related to the 1994 Geno-cide against the Tutsi, because of its special character. Dealing with a huge number of genocide suspects brought a big challenge to Rwanda criminal justice system.36
To deal with that catastrophic phenomenon, Rwanda established Gacaca courts through a constitutional amendment37 and the enactment of new laws.38 Without
denying the right to compensation for unlawful detention for those suspects, this study is limited only to compensation for unlawful detention related to common offences before and after the 1994 genocide against the Tutsi.
1.5.2. Remedies against unlawful detention
Remedies are “the means by which a right is enforced or the violation of a right is prevented, redressed or compensated.”39 Remedies for unlawful detention may be
34 Van Kempen, P.H.P.H.M.C., Pre-trial Detention. Human Rights, Criminal Procedural Law, and Penitentiary Law,
Comparative law = Detention avant jugement. Droits de l’homme, droit de la procédure pénale et droit pénitentiaire, droit comparé (International Penal and Penitentiary Foundation, 44) p.7, (2012).
35 According to Article 19 of the CCP, the Judicial Police comprise the following: criminal investigation police officers; criminal investigation military officers and civil servants empowered by the law or the Minister in charge of justice.
36 Luyt, W., Genocide in Rwanda: Detention and Prison Involvement, in Acta Criminologica 16(4), p.96, (2003). 37 Rwanda Constitutional Amendment of 18 January 1996.
38 Organic Law no 08/96 of 30/8/1996 governing the prosecution of Genocide crimes and other crimes against
humanity committed since the 1st October 1990, O.G. no 17, 1996. Organic Law n˚ 40/2000 of 26 /01/2001,
governing the creation of Gacaca Courts and organizing the prosecution of Genocide crimes and other crimes against humanity committed between the 1st October 1990 and the 31st December 1994, in the Official Gazette of
the Republic of Rwanda, 15th March 2001, p. 66-98.
39 Black’s Law Dictionary, 6th ed., p. 1294. (1990),
divided into two categories: procedural and substantive.40 Procedural remedies are
processes by which claims of unlawful detention are heard and decided by courts, administrative agencies or other competent bodies.41 Substantive remedies refer to
the outcomes of proceedings, i.e., the relief afforded to the successful claimant42
in the form of release, compensation and other remedies such as prosecution and punishment of those responsible for the unlawful detention. With regard to the out-comes of proceedings, this study focuses on “release and compensation remedies” as provided in the ICCPR, and the ECHR.43 The African Charter is silent on whether
an unlawfully detained person should be released, but that the African Commission on Human Rights has opined that unlawfully detained persons should be released.44
This study considers release either on a condition such as a bail or without condition as the first remedy.
The second remedy is the right to compensation for unlawful detention, which right has been provided for in various international and regional instruments. For exam-ple, the ICCPR and the ECHR provide for an enforceable right to compensation to anyone who has been a victim of unlawful arrest or detention.45 The United Nations
General Assembly has defined compensation as: “any economically assessable dam-age, as appropriate and proportional to the gravity of the violation and the circum-stances of each case… such as: (i) physical or mental harm; (ii) lost opportunities such as employment, education or social benefits; (iii) material damages including loss of earning potential; (iv) moral damage; and (v) any costs incurred for legal assistance, medical services, and psychological and social services.”46 This
defini-tion refers to both monetary and non-monetary damages. In this study, the term “compensation for unlawful detention “ is used in the broad sense as a specific form of reparation seeking to provide monetary awards for certain losses resulting from
40 Shelton, D., Remedies in International Human Rights Law, p.7 (2005) 41 Id., p.40.
42 Black’s Law Dictionary, 6th ed., p.1294 (1990).
43 Art. 9(4) ICCPR and Art. 5(4) ECHR.
44 African Commission on Human and Peoples’ Rights, (2003), para. m, 4, p.12. 45 Art.9 (5) ICCPR and Art.5 (5) ECHR.
46 UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and Serious Violations of International Humanitarian Law: Resolution adopted by the General Assembly, 21 March 2006, A/RES/60/147, Section 20, Hereinafter referred to as “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law.”
unlawful detention, be it of a monetary or non-monetary nature.47 I will examine
non-monetary forms of compensation, including a public apology and sentence reduction.
1.5.3. The victim of unlawful detention
The use of the word “victim” for the unlawfully detained person can be confusing. It is important to differentiate the victim of an offence from the victim of an unlawful detention. Since an unlawfully detained person sometimes is considered a suspect by the detaining authority, another person might be the victim of the offence sus-pected of being committed. Both the ICCPR and the ECHR uses the term “victim” for a person illegally detained, without defining the term. However, any person can be considered a” victim of unlawful detention” if he or she is suffering, or has suf-fered, harm due to the unlawful detention. Thus, the term victim also includes the family of the detained person, as well as other persons who have suffered harm due to the unlawful detention of the principal victim. This study follows the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights, which provides that the victim of an unlawful detention is the unlawfully detained person and his/her immediate family or dependants who have suffered harm due to the unlawful detention of the principal victim.48
1.6. Structure of this research
This work is divided into five chapters. The first chapter consists of an explanation of the context of this research, the problem statement, and the research questions. It also introduces the research methods used and the key concepts.
Chapter 2 consists of three parts. The first part discusses the legal mechanisms for
47 REDRESS, Reparation Sourcebook for Victims of Torture and other Violations of Human Rights and International Humanitarian Law, p.15,(2003).
48 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law, para. V. (8).
the protection of individuals against unlawful detention in Rwanda. The second part discusses unlawful detention in Rwanda. The third part discusses compensation for unlawful detention. Chapter 3 focuses on the role of regional and international courts and institutions for the protection of unlawfully detained persons in Rwanda and identifies the challenges such persons face in obtaining remedies. The first part of Chapter 3 examines the role of EAC institutions in the protection of unlawfully detained persons in Rwanda. Part two of Chapter 3 examines the role of African human rights institutions. The third part of Chapter 3 focuses on the role of UN institutions.
In Chapter 4, I compare the existing remedies in Rwanda for unlawful detention with those in Uganda, France, England and Wales, specifically focusing on proce-dural law and the institutional framework for remedies to discover best practices. Chapter 5 suggests specific ways in which Rwanda can improve its practices with re-spect to unlawful detentions. Part 1 of Chapter 5 considers how to increase access to justice for detained persons, educate the public on the rights of accused persons and make detaining officers more accountable. The second part of Chapter 5 examines how to improve the existing legal framework for both the habeas corpus procedure and compensation for unlawful detention. The third part of Chapter 5 discusses the need for Rwanda to enforce international and regional conventions protecting unlawfully detained persons. The fourth part of Chapter 5 makes recommendations for the future.
Chapter 2: Appraisal of the existing remedies against
unlawful detention in Rwanda
When studying remedies for unlawful detention, it is crucial to examine the existing remedies for unlawful detention in Rwanda. First, it is important to understand the existing mechanisms that protect individuals against unlawful detention. Sec-ondly, the situation of unlawful detention is studied. Thirdly, the compensation for unlawful detention in existing mechanisms is analysed. This chapter will illustrate the reasons in the existing Rwandan legal and institutional framework that prevent victims’ release from, and compensation for, unlawful detention.
2.1. The protection of the individual against unlawful detention in
Rwanda
2.1.1. Historical background The pre-colonial period
During its pre-colonial period, Rwanda was governed by a king who ruled by cus-tomary law.1 The justice system consisted of customary law whose main objective
was to ensure social harmony and peace in the community and avoid retribution for individual wrongs.2 During that period, there were no formal detention centres,
judges, advocates, prosecutors, police or prison officers.3 Any dispute was first
re-solved by the heads of families. If a party was not satisfied with that resolution, he or she could appeal the King’s representative and finally to the king himself, who was the supreme judge.4 However, some offences, like treason and rebellion, were
directly judged by the King.5
1 Kagame, A., Un abrégé de l’histoire du Rwanda de 1953 à 1972, p.31 (1972). 2 Ntampaka, C., Introduction aux Systèmes Juridiques Africains, p.33, (2005). 3 Ibid.
4 Sandrat, G., Cours de droit coutumier, p. 63 & 74(1951).
The colonial period
Between 1896 and 1916, Rwanda was colonised by Germany,6 which applied an
‘indirect rule’ system of administration.7 In other words, Germany did not make
changes to the existing legal, social and political institutions of Rwanda.8 After
Germany’s defeat in World War I, in 1916, League of Nations gave Ruanda (now Rwanda) and Urundi (now Burundi) to Belgium to govern as Ruanda-Urundi.9
During that period, Belgium introduced written law known as Congo Belge law10 into Ruanda-Urundi. Belgium, which also ruled the Congo (now Democratic Republic of Congo), applied the Congolese Penal Code to Ruanda-Urundi. On January 30, 1940, Belgium introduced a new penal code for the territories of Ruanda-Urundi. By that time, Belgium had introduced the following formal criminal justice insti-tutions: the police court, the first instance court and the court of appeal.11 In 1930,
Belgium built the Kigali prison and in 1935 the Ruhengeri prison and introduced the law regulating prisons.12 There were no formal prosecution or judicial police
institutions. The end of the colonial period was marked by ethnic conflicts between the Tutsi and Hutu tribes, followed by killings and mass arrests. In 1959, approxi-mately 270 people were killed and over 1200 were arrested.13
From independence to 1994
After independence, Rwanda improved the laws and criminal justice system that it inherited from Belgium by incorporating some aspect from Civil law14 and
custom-ary law.15 During this period, the Supreme Court, the courts of appeal, the courts of
6 Bindseil, R., Le Ruanda et l’Allemagne depuis le temps de Richard Kandt, p.122,(1988). 7 Kagame, A., (1972), p. 174.
8 Reyntjens, F., Pouvoir et droit au Rwanda – Droit Public et évolution politique, 1916-1973, Musée Royal de l´Afrique Centrale – Tervuren, Belgique Annales – Série IN-8° - Sciences Humaines - n° 117, p.71, ( 1985).
9 Reyntjens, F., (1985), p. 41-47.
10 Belgium did not impose its civil code in its colonies; instead, Belgium adopted a colonial code for its colonies. See Ntampaka C., (2005), p.3.
11 Schabas, A.W. & Imbleau, M., Introduction to Rwandan law, Les Editions Yvon Blais INC., p.5, (1997). 12 Royal Decree no 111/127 of 30/05/1961 on the administration of prisons in Rwanda.
13 UNESCO, General History of Africa, Africa since I935, p. 212, ( 1993).
14 Tort law which is embodied in Articles 1240, 1241, and 1242 of the French Civil Code, which are identical with Articles 258, 259 and 260 of the Rwanda Civil Code Book Three.
15 Ntampaka, C., (2005), p.3.
the first instance, the Canton tribunal, formal prosecution16 and police force17 were
established.18
In June 1973, a military coup d’état installed General Habyarimana as president. General Habyarimana stayed in power until his death on 6th April 1994. Between
1973 to 1990, Rwanda was characterised by peace and stability.19 The presumption
of innocence principle was introduced.20 In 1977, unlawful detention was made an
offence by Article 297 of the Rwandan penal code.21 During this period, Rwanda
ratified the ICCPR22 and the African Charter, both of which contained provisions
against unlawful detention.23
Between 1990 and 1994, Rwanda was engaged in a civil war ended with the 1994 genocide against the Tutsi.24 That civil war was marked by abuses and violations of
human rights, including killings and unlawful detentions.25 Before 1994, no legal
action was taken against those responsible for killing Tutsis and for unlawful deten-tions of Tutsis.26 “One structural precondition that immunity from prosecution for
those who had perpetrated violence against the Tutsi minority in the second half of
16 Law of 24 August 1962 related to organization and functioning of the court, establish the national public prosecution based in Kigali with the decentralized unit at the level of the first instance court.
17 Presidential order no 105/04 of 22 June 1962 governed the status of national police officers. Law Decree of
25 January 1974 establishing the national gendarmerie. Presidential order no 185/03 of 4 October 1977 on the
organization of “police communale”.
18 Law of 24 August 1962 related to organization and functioning of the court, Official Gazette, 1962. 19 UNESCO, (1993), p.462.
20 Art. 12 4 of the Rwandan Constitution of 20 December 1978, J.O., 1988, no 24 bis; Art. 12 4 of the Rwandan
Constitution of 10 June 1991, J.O., 1991; Art.19 of the Constitution of Rwanda; Art. 16 of the Criminal Procedure Code of 23 February 1963, J.O., 1963, p. 98, as modified up to 1996.
21 The decree no 21/77 of 18/08/1977 relating to penal code, in Official Gazette, no 13 of 01/07/1978.
22 For example, on April 16, 1975, Rwanda ratified the International Covenant on Civil and Political Rights (ICCPR), which was entered into force on July 16, 1975, and was incorporated into domestic law pursuant to Decree-Law No. 8/75 of 12 February 1975, Official Gazette, no. 5, 1 March 1975.
23 Ratified by the Republic of Rwanda on November 11, 1981 in Addis Ababa, as approved by Law n° 10/1983 of May 17, 1983.
24 In a period of three months, the genocide in Rwanda resulted in between 800,000 to 1,000,000 deaths of Tutsis and moderate Hutus out of a population of 7,590,235 Rwandans. See Des Forges, A., Leave None to Tell the Story:
Genocide in Rwanda, Human Rights Watch, p.187, (1999).
25 Fédération Internationale des Droits de L’homme (FIDH), Rapport de la Commission Internationale d’enquêté (7-21
Janvier 1993), Violations Massives et Systématiques des Droits de l’Homme depuis le 1er Octobre 1990 au Rwanda,
Paris (1993).
26 U.N. Commission on Human Rights, Report on the situation of human rights in Rwanda submitted by R Degni- Ségui Special Rapporteur of the Commission on Human Rights under paragraph 20 of Commission resolution E/CN.4/S-3/1 of 25 May 1994, Under Paragraph 20 of Commission Resolution E/CN.4/S--‐3/1 of 25 May 1994, §20, U.N. Doc. E/CN.4/1995/7 (June 28, 1994).
the 20th century appears to have paved the way towards the 1994 genocide against
Tutsi”.27
From 1994 to the 2004 judicial reform
In 1994, Rwanda fell into a dark hole due to the genocide against the Tutsi, which resulted in mass killings, property destruction and the flight of Rwandans from the country. Another effect of the genocide was the destruction of the justice system in Rwanda. Most judges, prosecutors, and advocates either fled the country or were killed. Courts, records, and equipment were damaged or destroyed.28
After the genocide, the new Rwandan government re-established the criminal justice institutions and appointed new judges and prosecutors. However, the new judges and prosecutors lacked experience and expertise. More than 120,000 people suspected of having participated in the genocide were detained and awaiting trials.29
The caseload created by the large number of persons arrested for genocide crimes overwhelmed the courts, and the prisons overflowed. Between 1994 and 1998, thou-sands of prisoners died during pre-trial detention as a result of extreme overcrowd-ing, deplorable prison conditions and injuries sustained from torture.30 Since 1999,
the conditions in prisons have improved steadily – most notably in 2003 when the government embarked on a programme of provisional release of several thousand prisoners.31 The provisional release was for those detained without a case file, those
whose case files lacked evidence, those who had confessed to their participation in the genocide, those accused of common crimes who had already spent more time in prison than the sentence provided for them under law and those who were under 18 years old at the time of their alleged crimes, as well as the elderly and sick. 32
27 Jallow, H.B., The Contribution of the United Nations International Criminal Tribunal for Rwanda to the Development
of International Criminal Law, in Phil Clark & Zachary D. Kaufman eds., After Genocide: Transitional Justice, Post-Conflict Reconstruction, and Reconciliation in Rwanda and Beyond, p. 265, (2009).
28 Nash, K., A Comparative Analysis of Justice in Post-Genocidal Rwanda: Fostering a Sense of Peace and Reconciliation, 1 Africana, p.79 et seq. (2007),
29 Bornkamm, P.C., Rwanda’s Gacaca Courts: Between Retribution and Reparation, p. 1, (2012). 30 Tertsakian, C., Le Château: The lives of prisoners in Rwanda, p. 36, (2008).
31 Id., p.49. 32 Id., p. 427.
In 2004, the legislature improved the criminal justice institutions and criminal procedure code. The legislature established the primary court, intermediate Court, high court and Supreme Court. The high council of the judiciary appointed trained judges and court registrars. The Rwandan government appoints national prosecu-tors and prosecuprosecu-tors at intermediate courts and primary court levels. The legislature established also the judicial police.33 In 1997, the Rwanda bar association was
estab-lished with the goal of putting to gather all the members of the Bar Association and monitor welfare and ethics of Advocates.34 With regard to the protection of
individ-uals against unlawful detention, the CCP defined the particular conditions which lead to unlawful detention and introduces the habeas corpus procedure.35 Moreover,
the CCP defines the rights of suspects which will be developed in the following paragraph.
2.1.2. Rights of suspects
Article 24 of Rwanda’s Constitution guarantees a “person’s liberty and security.” It explains that no one “shall be subjected to security measures except as provided for by law and for reasons of public order or State security.” This subsection examines the rights of suspects under Rwandan law. The enforcement of these rights is dis-cussed in section 2.2.
2.1.2.1. The right to be informed of the charges
The right to be informed of the charges against one is protected by Rwandan law and international instruments. In Rwanda, Article 29.1 of the Constitution states that all persons have the right to be informed of the nature and cause of the charges against them. The Rwandan CCP also guarantees that right. Article 38 of the CCP states:
33 Law n°46/2010 of 14/12/2010 determining the Powers, Responsibilities, Organization and Functioning of the Rwanda National Police, Law nº12/2017 of 07/04/2017 establishing the Rwanda Investigation Bureau and determining its mission, powers, organisation and functioning. Official Gazette nᵒ Special of 20/04/2017.
34 Law no 15/99 of 15/08/1999 modifying and complementing Law no 03/97 creating the bar association in Rwanda
in Official Gazette no 18 of 15/09/1999.
35 Arts. 88 and 89 of the Law n° 13/2004 relating to the Code of Criminal Procedure, O.G.R.R, Special no. of
Any person held in custody by the Judicial Police shall be informed of the charges against him/her and his/her rights including the right to inform his/ her legal counsel or any other person of his/her choice thereof. Such prerog-ative shall be indicated in the statement signed by both the Judicial Police Officer and the suspect.
International and regional human rights instruments ratified by Rwanda also rec-ognize the right to be informed of the charges. Article 9 (2) of the ICCPR states that “anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”36 In the
same vein, the African Commission on Human and Peoples’ Rights states, “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest and shall be promptly informed, in a language he or she understands, of any charges against him or her.”37
2.1.2.2. The right to be detained in a place recognized by law
Article 40 of the CCP states that “A person held in detention by the Judicial Police shall in no way be held in prison or in any place other than the relevant custody facility located within the jurisdiction of the Judicial Police Officer or the Military Police Officer for members of the military and their co-offenders and accomplices.” Judicial Police custody facilities are located at police stations and police posts. The person under pre-trial detention, detention after starting of the hearing on merits, and detention after conviction38 must be detained in prison. A prison is “a place
established by a Presidential Order where persons are incarcerated following a court decision”.39 The pre-trial detention also resulted from the court’s decision.40 The
African Commission on Human and Peoples’ Rights also requires that any person deprived of liberty shall be held in an officially recognized place of detention.41
36 The Human Rights Committee points out that “one major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded. See HRC, General Comment no. 35, § 25.
37 African Commission on Human and Peoples’ Rights,(2003), para M. 2(a). 38 Art. 229 of the CCP.
39 Art. 3(10) of the Law n° 34/2010 of 12/11/2010 on the establishment, functioning and organization of Rwanda
Correctional Services “RCS”), Official Gazette n°04 of 24/01/2011. 40 Art.102 of the CCP.
41 African Commission on Human and Peoples’ Rights, (2003), para M.6 (a).
2.1.2.3. The right to inform family or friends
The right to inform family and friends of the charges is also secured by Rwandan law and a regional instrument. Article 38 of the CCP states that any person held in custody by the Judicial Police shall be informed the right to inform any person of his/her choice. The African Commission on Human and Peoples’ Rights, interpret-ing the African Charter that “Anyone who is arrested or detained has the right to inform, or have the authorities notify, their family or friends. The information must include the fact of their arrest or detention where the place that the person is kept in custody.”42 Thus, detained persons have the right to inform, or have the authorities
inform, their family or a friend. 2.1.2.4. The right to a legal counsel
The right to a legal counsel is secured by Rwandan law. Article 29 (1) of the Rwan-da’s Constitution states that everyone is entitled to the right to due process of law, which includes the right to defence and legal representation. Similarly, Article 39, paragraph 2 of the CCP provides:
Any person held in custody by the Judicial Police shall have the right to legal counsel and to communicate with him/her. If a suspect is unable to find a legal counsel, the Judicial Police officer or the Prosecutor shall inform the Chairperson of the Bar Association so that he/she assigns a legal counsel for the suspect. The suspect shall have the right to accept or refuse to be represented by such a legal counsel.
2.1.2.5. The right to be presumed innocent
The presumption of innocence is a fundamental criminal law principle recognised under Rwandan and international law. According to Article 29, (20) of Rwanda’s
Constitution “everyone has the right to due process of law, which includes the right… to be presumed innocent until proved guilty by a competent court.” Article 85 of the CCP states that “an accused shall always be presumed innocent until proven guilty by a final court decision.” Additionally, Article 165 of the CCP provides that
the accused is entitled to “the benefit of the doubt.” That article of the CCP further provides that “If the proceedings conducted as completely as possible do not enable judges to find reliable evidence proving beyond reasonable doubt that the accused committed the offence, judges shall order his/her acquittal.” Those provisions
em-body the principle of dubio pro reo, meaning “when in doubt, for the accused.” The presumption of innocence is also recognized in international law. Article 14(2) of the ICCPR states that: Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” Article7 (1) of the African Charter requires that “Every individual shall have the right to have his cause heard. This comprises… the right to be presumed innocent until proved guilty by a competent court or tribunal.”
The Human Rights Committee (HRC) indicates that the right of a person to be presumed innocent imposes upon judicial authorities and public officials “the duty to refrain from prejudging the outcome of a trial, e.g. by abstaining from making a public statement affirming guilt of accused.”43 Rwandan judicial authorities and
public officials sometimes make public statements that prejudge the guilt of an accused person. For example, when Kizito Mihigo44 was arrested, the Minister of Sports and Culture stated that the “Rwandan community should not continue to consider Kizito Mihigo as a star; he should be considered as other criminals.”45 That
statement violated the presumption of innocence to which Mihigo was entitled. The media must also respect the presumption of innocence when reporting news. Article 18 of the Code of Ethics Governing Journalists, other Media Professionals and the Media in Rwanda46 provides that:
43 HRC, General comments no 32(n141) (30).
44 Famous singer and compositor in Rwanda.
45 See X, Kizito Mihigo ni umugizi wa nabi nk’abandi bose – Min.Mitali.,availible at http://www.kigalitoday.com/ amakuru/amakuru-mu-rwanda/Minisitiri-Mitali-yagize-icyo-atangaza-ku-itabwa-muri-yombi-ry-umuhanzi-Kizito, accessed 12/12/2017.
46 Association of Rwandan Media Women(ARFEM), Rwandan Editors‘ Forum(REFO), Association of Rwandan Journalists(ARJ), Code of Ethics Governing Journalists, Other Media Professionals and the Media in Rwanda, June 2011.
The journalist and any other media professional shall observe the innocence presumption principle for those suspected of punishable or criminal facts before the verdict from competent courts and tribunals is announced. While handling any legal information, they shall avoid establishing any individuals’ relationship with the suspect, or referring to his or her ethnic group, tribe, religion, sex, family or friends, unless their mention serves public interest. If suspects’ pictures or photos are broadcasted or published before their guilt is established, the journalist or media professional responsible for publishing those pictures has the obligation to follow up the lawsuit and broadcast or publish the verdict from competent courts and tribunals. However, if sus-pects are less than 18 years of age, journalists and other media professionals shall be careful not to broadcast or publish their pictures or photos before competent courts and tribunals establish their liability.
Despite that ethical code, in some cases journalists have distributed pictures of sus-pects during arrest and detention without reporting at the end what was the outcome of the trial. If the media report only the arrest of a suspect, the public continues to believe that the concerned person is guilty after he or she has been found not guilty by a court. This situation was reflected in the Mujyanama Elisaphan case.47 Mujyanama Elisaphan was arrested by the Rwanda National Police and accused of corruption.
Several publications and TV stations in Rwanda reported on his arrest by showing his photo and identifying him by name. He was subsequently acquitted. However, the media failed to report his acquittal. Mujyanama Elisaphan was denied by his em-ployers and colleagues who have learned of his detention but who never heard on his acquittal. This affected his professional life. In this regard, Mujyanama Elisaphan sub-mitted his complaint to the Rwanda Media Commission, pursuant to Article 18 of the Code of Ethics, requesting damages of twenty million Rwandan francs and an order directing the media to report his acquittal. As a result, the Rwanda Media Commis-sion ordered the media to report the acquittal in their respective publications, but did
47 Decision by the Rwanda Media Commission on the case filed by Mujyanama Elisaphan, available at http://rmc. org.rw/decision-by-the-rwanda-media-commission-rmc-on-the-case-filed-by-mujyanama-elisaphan-philos-against-different-media-organs/, [accessed 11/12/2016].
